HomeMy WebLinkAboutResolution - 529 - Grant Application - DOT, UMTA- Section 8 Technical Studies - 06/12/1980DGV:pc
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RESOLUTION #529 - 6/12/80
RESOLUTION AUTHORIZING THE FILING OF AN APPLICATION WITH THE DEPARTMENT
OF TRANSPORTATION, UNITED STATES OF AMERICA, FOR A GRANT UNDER THE URBAN MASS
TRANSPORTATION ACT OF 1964, AS AMENDED.
WHEREAS, the Secretary of Transportation is authorized to make grants for
mass transportation projects;
WHEREAS, the contract for financial assistance will impose certain obli-
gations upon the applicant, including the provision by it of the local share
of project costs;
WHEREAS, it is required by the U.S. Department of Transportation in
accord with the provisions of Title VI of the Civil Rights Act of 1964, that
in connection with the filing of an application for assistance under the Urban
Mass Transportation Act of 1964, as Amended, the applicant give an assurance
that it will comply with Title VI of the Civil Rights Act of 1964 and the U.S.
Department of Transportation requirements thereunder; and
WHEREAS, it is the goal of the Applicant that minority business enter-
prise be utilized to the fullest extent possible in connection with this pro-
ject, and that definitive procedures shall be established and administered to
ensure that minority businesses shall have the maximum feasible opportunity to
compete for contracts when procuring construction contracts, supplies, equipment
contracts, or consultant and other services; and
WHEREAS, the City Council has determined that it would be in the best
interest to authorize the City of Lubbock to participate with the Urban Mass
Transportation Administration of the U.S. Department of Transportation in the
update and revision of past Transit Studies, and to apply for assistance for
such study from UMTA; NOW THEREFORE:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1. THAT the Mayor is hereby authorized to make application
for a Technical Studies Grant from UMTA with the Steering Committee (Metro-
politan Planning Organization) of Lubbock Urban Transporation Study, being the
designated planning agency; and
THAT the Mayor of the City of Lubbock, BE and is hereby authorized and
directed to execute an Agreement with the United States of America, acting
through the Urban Mass Transportation Administration, in the event the Grant
is approved; and
THE City of Lubbock does hereby agree to provide matching funds for such
Technical Studies which shall be in an amount no to exceed Eight Thousand
Dollars ($8,000.00). Such matching funds shall be in cash or in-kind services.a
UMTA funds will not exceed Thirty -Two Thousand Dollars ($32,000.00)
SECTION 2. THAT the Mayor is authorized to execute and file with such
application an assurance or any other document required by the U.S. Department
of Transportation effectuating the purposes of Title VI of the Civil Rights
Act of 1964.
SECTION 3. THAT the Mayor is authorized to furnish such additional
information as the U.S. Department of Transportation may require in connection
with the application of the project.
SECTION 4. THAT the Mayor is authorized to set forth and execute
affirmative minority business policies in connection with the project's
procurement needs.
Passed by the City Council this 12th day of June , 1980.
t -A/
46?,,t44J
BILr-MEKLISTER, MA OR
-"ATTEST:
Evelyn Gailfga City OSeC,' Eary-Treasurer
APPROVED AS TO CONTENT:
John Wilson, Transit Coordinator
APPROVED AS TO FORM:
e
Donald G. Vandiver, First Asst. City Attorney
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3 UNITED STATED OF AMERICA
DEPARTMENT OF 'TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
NOTIFICATION OF GRANT APPROVAL
49 U.S.C..S 1607
(SECTION 8 — TECHNICAL STUDIES)
Project No. TX -09-0146
GRANTEE: City of Lubbock
ESTIMATED TOTAL PROJECT COST: Forty thousand dollars ($40,000)
MAXIMUM FEDERAL SHARE: Thirty two thousand dollars ($32,000)
OBLIGATION DATE: 'AUG 2 1 19$$
SOURCES OF FEDERAL YINANC1AL ASSISTANCE
33.00.00.00
PROJECT DESCRIPTION:
Work to be accomplished will be in accordance with planning activities as
described in the September 1, 1980 - August 31, 1981 Unified Work Program for
the Lubbock urbanized area, as approved by the Urban Mass Transportation
Administration.
AUG 21 AGO
DATE
�i
REGIONAL DIRECTOR
► UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
GRANT
49 U.S.C. 5 1607
(Section 8)
PART I
THIS GRANT, effective on the date specified in the Notification
of Grant Approval -is entered into by and between the United
States of America ("Government") and the Grantee named in the
Notification of Grant Approval.
In consideration of the mutual convenants, promises, and
representations herein, the parties hereto agree as follows:
Sec. 1. Purpose of Grant - The purpose of this Grant is to
provide for the undertaking of an urban mass transportation
technical study project ("Project"), with Government financial
assistance to the Grantee in the form of a technical study grant
("Grant"), under Section 8 of the Urban Mass Transportation Act
of 1964, as amended, ("Act") to state the terms and conditions
upon which such assistance will be provided and the understandings
as to the manner in which the Project will be undertaken and
completed.
Sec. 2. The Project - The Grantee agrees to undertake, carry
out, and complete the technical study comprising the Project
substantially as described in its Application incorporated
herein -by reference, filed with and approved by the Government,
and in accordance with the terms and conditions of this Grant.
The "Project Description" in the Notification of Grant Approval
describes the Project to be funded under this Grant.
Sec. 3. The Grant - In order to assist the Grantee in
financing the cost of the Project, which cost is estimated to
be that amount stated in the Notification of Grant Approval,
the Government will make a Grant in an amount equal to eighty
percent (80%) of the actual cost of the Project as determined
by the Department of Transportation upon completion of the
project or in the amount specified as Maximum Federal Share
in the Notification of Grant Approval, whichever is the lesser.
The obligation of the Government to
in any fiscal year shall not exceed
Project Budget for the fiscal year
therefor are submitted or drawdowns
made.
Form UMTA F 200?
Rev. 5/20/80
make Federal Grant payments
the amount provided in the
in which requisitions
under letter of credit are
Sec, 4. Planning Requirements -.The transportation plans and
programs which are developed as part of this Project shall
be formulated on the basis of transportation needs with due
consideration to comprehensive long-range land use plans,
development objectives, and overall social, economic,
environmental, system performance, and energy conservation
goals and objectives, and with due consideration to their
probable effect on the future development of the urban area
described in the Application. The planning process shall
include an analysis of alternative transportation system
management and investment strategies to make more efficient
use of existing transportation resources and to meet needs for
new transportation facilities. The process shall consider
all modes of transportation and shall be continuing, cooperative,
and comprehensive to the degree appropriate based on the
complexity of the transportation problems. Furthermore, the
plans and programs that are developed as part of this Project
shall encourage to the maximum extent feasible the partici-
pation of private enterprise. Where facilities and equipment
are to be acquired which are already being used in mass
transportation service in the urban area, the program must
provide that they shall be so improved that they will better
serve the transportation needs of the area.
Sec. 5. The Grant - This Grant consists of the Notification
of Grant Approval; this Part I, Form UMTA F 2003, Rev. 5/2Q/80,
entitled Grant; and Part II, Form UMTA F 5E, Rev. 5/20/80,
entitled Urban Mass Transportation Agreement, Terms and
Conditions. Should the grant award letter include special
conditions for, this Project, that letter is incorporated
herein by reference and made part of this Grant.
The
approved Project Budget is incorporated herein by reference
and made part of this Grant. Amendments to any of these
documents -shall require a formal amendment to this Grant,
except that reallocations of funds among budget items or
fiscal years which do not increase the total amount of the
Federal grant shall only require prior authorization from.
UMTA and the issuance of a new Project Budget.
Sec. 6. Execution of Grant. This Grant may be simultaneously
executed in several counterparts, each of which shall be
deemed to be an original having identical legal effect.
When signed by the Government, this Grant should be executed
by the Grantee within ninety (90) days after the Obligation
Date. The Government may withdraw its obligation hereunder
if the Grant
effectiveis not edatedof1thenGrant the ashall nbeethed0 ligation
period.
Date.
Page 2
i t
The Grantee does hereby ratify and adopt all statements,
representations, warranties, convenants, and materials submitted
by it, and does hereby accept the Government's award of
financial assistance and agrees to all of the terms and
conditions of this Grant.
Executed this 29 day of Au l9 80
r
ATTEST BY
Evelyn Ga f9a, City Secretary'=Tfq�urer MIM McAlister
City of Lubbock, Texas Mayor. City of Lubbock, Texas
TITLE AND ORGANIZATION TITLE AND ORGANIZATION
Certificate of Grantee's Attorney
I, Donald G. Vandiver , acting as Attorney for the Grantee do
hereby certify that I have examined this Grant and have
ascertained that execution of the Grant was authorized on
the date of 6-12-80 A copy of this authorization is
attached or has previously been submitted to UMTA. The
execution of this Grant and the proceedings taken by the
Grantee are in all respects due and proper and in accordance
with applicable State and local law.! I further certify
that, in my opinion, said Grant constitutes a legal and
binding obligation of the Grantee in accordance with the -
terms thereof and certify that to the best of my knowledge
there is no legislation or litigation pending or threatened
which might affect the performance of the Project in accordance
with the terms of this Grant.
Dated this 29 day of August , 19 80
(h - 7,�& YIQ-n-
SIGNATURE
Donald G. Vandiver
First Assistant City Attorney
City of Lubbock, Texas
TITLE AND ORGANIZATION
Page 3
[moi - �i &9��1�+pl
Section 101.
Definitions...........................................1
• Section 102.
Acccmpli&rmt of the Project .........................2
(a)
General Requirements .............................2
(b)
Pursuant to Federal, State arra Local Law .........
2
-
(c)
FurOs of the Recipient ...........................2
(d)
Submission of Proceedings, Contracts, and Other
Documents.......................................3
(e)
Changed Conditions Affecting Performance .........
3
(f)
No Government Obligations to Third Parties,......3
(g)
Land Acquisition Policy ..........................3
Section 103.
The Project Budget....................................3
Section 104.
Accounting Records....................................3
(a)
Project Accounts.................................3
(b)
Funds Received or Made Available for the
Project .........................................
3
(c)
Allowable Costs....:.............................4
(d)
Documentation of Project Costs...................4
(e)
Checks, Orders and Vouchers......................4
(f)
Audit and Inspection .............................5
Section 105.
Requisitions arra Payments .............................5
(a)
Request for Payment by the Recipient.............5
(b)
Payment by the Government ........................5
(c)
Disallowed Costs .................... ............6
(d)
Letter of Credit ................ ................6
(e)
Interest on Late Payments ........................7
Section 106.
Right of Government to Terminate ......................7
Section 107.
Project Completion, Settlement and Close -Oat ..........
7
Section 108.
Contracts of the Recipient ............. .............7
Section 109.
Restrictions, Prohibitions, Controls, and Labor
Provisions..........................................8
(a)
Equal IInplvyment Opportunity.. ................8
-
(b)
Small, Minority and Women's Business
Enterprise......................................8
(c)
Title VI - Civil Rights Act of 1964 ..............
10
(d)
C�titive Bidding ..............................
10
(e)
...... .... ....................10
Ethics........ �
(f)
Interest of Menbers of or Delegates to
Congress ........................................
11
Section 110.
Construction Contracts................................11
(a)
Nondiscrimination................................11
(b)
Specifications...................................14
(c)
Notice...........................................21
(d)
Labor Provisions.................................22
(e)
Changes in Construction contracts................29
(f)
Contract Security................................29
(g)
Insurance During Construction ....................29
(h)
Signs.... ........0006 .... ...................... 29
(i)
Liquidated Damages Provision .....................
30
(j)
Provisions of construction contracts.............30
(k)
Actual Work by Contractor ........................30
(1)
Force Account....................................30
(m)
Safety Standards.................................30
i
Section 111. Enviramiental, Resource, and Energy Protection and
Conservation Requirenents ............................30
(a) Compliance with Environmental Standards .......... 30
(b) Air Pollution....................................31
(c) Use of Public Lands..............................31
(d) Historic Preservation ............................31
(e) Energy Conservation..............................31
Section 112. Patent Rights.........................................31
Section 113. Rights in Data .............. ........................34
Section 114. Cargo Preference - Use of United States Flag
Vessels..............................................35
Section 115. Buy America...........................................36
Section 116. Charter and School Bus Operations ..................... 37
(a) Charter Bus......................................37
(b) School Bus.......................................37
Section 117. Compliance with Elderly and Handicapped
Regulations..........................................37
Section 118. Flood Hazards.........................................37
Section 119. Privacy ................ .............................38
Section 120. Miscellaneous .................... ...................39
(a) Bonus or Cam-russion.................... ..........39
(b) State and Territorial Law... ... o ............ o .... 39
(c) Records........................................40
(d) Severability.....................................40
ii
t�l••'J� to • L'•'J •
C' VD Ime
PART II — TERNS AND CONDITIONS
Constituting part of the AGREEMENT providing for federal
financial assistance under the provisions of the Urban Mass
Transportation Act of 1964, as amanded, and,/or the Federal Aid
Highway Act of 1973.
Section 101. Definitions. As used in this Agreement:
"Application" means the signed and dated proposal as may be amended
for federal financial assistance for the Project, together with all
explanatory, supporting, and supplementary documents heretofore filed
with UMM by .or on behalf of the Recipient, which has been accepted
arra approved by UMM.
"Approval, Authorization, concurrence, Waiver" means a conscious,
written act by an authorized official of the Government granting
permission to the Recipient to perform or omit an act pursuant to
this Agreement which could not be performed or emitted without such
permission. An approval, authorization, concurrence, or waiver
permitting the performance or omission of a specific act shall not
constitute permission to perform or snit similar acts unless such
broad permission is clearly stated. Oral permission or interpreta-
tions shall have no legal force or effect.
"External Operating Manual" means the most recent U4M manual of
that title, which presents information about the UMTA programs,
application processing procedures, and guidance for administering
approved projects; There are also UKM and DOT directives applicable
to the Project.
"Government" means the United States of America, or its cognizant
Agency, the Department of Transportation (DOT) or its Agency, the
Urban Mass Transportation A&nmistration (UW) used hereafter
interchangeably.
"Mass Transportation" includes public transportation and means
transportation by bus, rail or other conveyance, either publicly
or privately owned, which provides to the public general or special
transportation service (but not including school buses, charter or
sightseeing service) to the public on a regular and continuing basis.
"Project" means the task or set of tasks provided for in the Project
budget which the Recipient undertakes to perform pursuant to the
Agreement with MEM.
"Project Budget" mans the most recently dated statement, approved by
UMIA, of the estimated total cost of the Project, the items to`be
deducted from such total in order to calculate the estimated net
project cost, the maximxn amount of the federal grant for which the
Recipient is currently eligible, the specific items (including
contingencies and relocation) for which the total may be spent, the
estimated cost of each of such items, and the maximum amount of
federal funds which may be disbursed in any fiscal year.
"Recipient" means any entity that receives federal financial assistance
from UHM for the accomplishment of the Project. The term "Recipient"
includes any entity to which federal funds have been passed through
for the accomplishment of the Project.
"Secretary" means Secretary of the Department of Transportation or
his duly authorized designee.
Section 102. Accomplishment of the Project.
(a) General Reauirerrents. The Recipient shall commence, carry on, and
complete the Project with all practicable dispatch, in a sound,
economical, and efficient manner, and in accordance with the
provisions hereof, the Application, and all applicable laws and
regulations.
(b) Pursuant to Federal, State, and Local Law. In performance of its
obligations pursuant to this Agreement, the Recipient and its con-
tractors shall comply with all applicable provisions of Federal,
State, and local law. All limits or standards set forth in this
Agreement to be observed in the performance of the Project are
minimum requirements, and shall not affect the application of more
restrictive State or local standards for the performance of the
Project; provided, however, in its procurement actions pursuant
to the Project, the Recipient shall not give any preference to or
discriminate against goods and services produced or manufactured in
any country, State, or other geographical area except as provided
in Section 115 below. The Recipient agrees further that notwithstanding
the requirements in Section 115, no Federal funds shall be used to
support procurements utilizing exclusionary or discriminatory
specifications, nor shall federal funds be used for the payment of
ordinary governmental or nonproject operating expenses.
(c) Funds of the Recipient. The Recipient shall initiate and prosecute
to completion all proceedings necessary to enable the Recipient to
provide its share of the Project costs at or prior to the time that
such funds are needed to meet Project costs.
2
t R
(d) Submission of Proceedings, Contract and Other Documents. The
Recipient ill suImit to the Government such data, reports, records,
contracts and other documents relatinq to the Proiect as the Cloven ent
may require. The Recipient shall retain intact, for three years
following Project close-out, all Project documents, financial
records, and supporting documents.
(e) Chan ed Cbnnditicns Affectipg Performance. The Recipient shall immedi-
ately notify LMTA of any change in co itions or local law, or of
any other event, which may significantly affect its ability to
perform the Project in accordance with the provisions of this
Agreement.
(f) No Government obligations to Third Parties. The Goverment shall
not be subject to any obligations or liabilities by contractors
of the Recipient or their subcontractors or any other person not
a partv to this Aareem nt in connection with the oerfonrance of
this Project without its specific consent and notwithstanding its
concurrence in or approval of the award of any contract or sub-
contract or the solicitation thereof.
(g) Iand Acquisition Poles. Any acquisition of land for use in connection
with the Project must conform to the policies and procedures set
forth in 49 C.F.R. Part 25 and applicable Circulars.
Section 103. The Project Budget. A Project Budget shall be prepared and
maintained by the Recipient. The Recipient shall carry out the Project
and shall incur obligations against and make disbursements of Project
Funds only in conformity with the latest approved budget for the Project.
Section 104. Accounting Records.
(a) Project Accounts. The Recipient shall establish and maintain as
a separate set of accounts, or within the framework of an established
accounting system, accounts for the Project in the manner consistent
with office of Management and Budget (CHB) Circular A-102, as amended,
or A-110, as may be appropriate.
(b) Funds Received or Made Available for the Project. In accordance with
the provisions of OMB Circular A-102, as amended, or A-110, as may be
appropriate, the Recipient shall record in the Project Account, and
deposit in a bank or trust carpany which is a manber of the Federal
Deposit Insurance Corporation, all Project payments received by it frau
the Government pursuant to this Agreement arra all other funds provided
for, accruing to, or otherwise received on account of the Project,
("Project Funds"). Any balances exceeding the FDIC coverage must be.
collaterally secured as provided in 12 U.S.C. S 265 and implementing
regulations or in applicable IMM procedures. A separate bank account
may be required when drawdowns are made by letter of credit.
3
(f) Audit arra Inspection. The Recipient shall permit, and shall require
its contractors to permit, the Secretary and the Ccamptroller General
of the United States, or any of their duly authorized respresentatives
to inspect all work, materials, payrolls, arra other data and records
with regard to the Project, arra to audit the books, records, and
accounts of the Recipient and its contractors with regard to the Project.
Recipients that are State or local governments or Indian tribal govern-
ments shall be responsible for meeting the audit requirements of CMB
Circular A-102, Attachment P, or any revision or supplement thereto. The
Recipient is responsible for auditing third party contracts and agreements.
UMrA also may require the Recipient to furnish at any time prior to
closeout of the Project, audit reports prepared in accordance with generally
accepted accounting principles. In the case of Section 5 operating
projects, subsequent to the close of the local fiscal year for which
which operating assistance is sought, the Recipient shall furnish a
final audit report prepared by a State or local government independent
audit agency or an independent public accountant which shall include
as a mininnsm a Statement of Revenue and Expense, a Statement of
Changes in Financial Position, and a Maintenance of Effort Calculation
of the mass transportation operator for the assisted local fiscal
year.
Section 105. Requisitions and Payments.
(a) Requests for Payment by the Recipient. The Recipient may make
requests for payment of the federal share of allowable costs, and
UMTA will honor such requests in the manner set forth in this
section. Payments made to Recipients must damply with 31 C.F.R.
Part 205. Recipients shall follow the procedures set forth in UM]A
Circular 9050.1. In order to receive federal assistance payments, the
Recipient must:
(1) ocmpletely execute and submit to umm the information
required by Standard Form 270;
(2) submit to UNM an explanation of the purposes for which
costs have been incurred to date or are reasonably expected to be
incurred within the requisition period (not more than 30 days after
the date of submission);
(3) demonstrate or certify that it has supplied local funds
adequate, when oembined with the federal payments, to cover all
costs to be incurred to the end of the requisition period;
(4) have submitted to UMI., all financial and progress reports
required to date under this Agreement; and
(5) identify the source(s) of financial assistance provided
under this Project from which the payment is to be derived.
(b) Payment by the Government. Upon receipt of the requisition and the
accompanying information in' satisfactory form, the Government will
process the requisition if the Recipient is complying with its
obligations pursuant to the Agreement, has satisfied UNTA of its
need for the federal funds requested during the requisition period,
arra is making adequate progress towards the timely oomlpletion of
the Project. If all of these circumstances are found to exist,
5
the Govenvent will reimburse apparent allowable costs incurred (or
to be incurred during the requisition period) by the Recipient up
to the maxinL n amount of the federal assistance payable through the
fiscal year in which the requisition is submitted as stated in the
Project Budget. However, reimbursement of any cost pursuant to
this section shall not constitute a final determination by the
Government of the allowability of such cost and shall not constitute
a waiver of any violation of the terms of this Agreernnt cacmitted
by the Recipient. The Government will make a final determination
as to allowability only after final audit of the Project has been
conducted.
In the event that UWA determines that the Recipient is not currently
eligible to receive any or all of the federal funds requested, it
shall pratmtly notify the Recipient stating the reasons for such
determination.
(d) Disallowed Costs. In determining the amount of the federal assistance, UMrA
will exclude all Project costs incurred by the Recipient prior to
the date of this Agreement, or prior to the date of the approved
budget for the Project, whichever is earlier unless an authorized
representative of UMTA advises in writing to the contrary; any
costs incurred by the Recipient which are not provided for in the
latest approved budget for the Project; and any costs attributable
to goods or services received under a contract or other arrangement
which has not been concurred in or approved in writing by UMrA.
Exceptions to the above statement on disallowed costs are contained
in the External operating Manual or in written guidance from UMrA.
(d) Letter of Credit. Should a letter of credit be issued to the
Recipient, the following terms and conditions in conformance with
31 C.F.R. Part 205, are applicable:
(1) the Recipient shall initiate cash drawdowns only when
actually needed for Project disbursements.
(2) the Recipient shall report its cash disbursements and
balances in a timely manner as required by the Government.
(3) the Recipient shall provide for effective control and
accountability for all Project funds in accordance with require-
ments and procedures issued by the Government for use of the letter
of credit.
(4) the Recipient shall impose on its subrecipients all the
requirements of Section 105(d) (1) (2) and (3) above as applicable.
(5) should the Recipient fail to adhere to the requirements of
section 105(d) (1) (2) (3) and (4) above, the Government may revoke
the unobligated portion of the letter of credit.
6
(6) Section 105(x), (b), and (c) above remain effective to the
extent that they do not conflict with the provisions of section 105(d).
(e) Interest on Late Payments. Upon notice by UMM to the Recipient of
specific arounts due the Government, the Recipient shall promptly
remit any excess payment of amounts or disallowed costs to UMIA.
Interest may be assessed from the time of notice and charged for any
amounts due to the Goat that are not paid as set forth in the
Treasury Fiscal Requirements Manual.
Section 106. Right of Govenrx-mt to Terminate. Upon written notice to
the Recipient, the Government reserves the right to suspend or terminate
all or part of the financial assistance provided herein if the Recipient
is, or has been, in violation of the terms of this Agreement or if UNM
determines that the purposes of the Act would not be adequately served
by continuation of federal financial assistance for the Project. Any
failure to make progress or other violation of the Agreement which
significantly endangers substantial performance of the Project within
a reasonable time shall be deemed to be a violation of the terns of
this Agreement. Termination of any part of the financial assistance
will not invalidate obligations properly incurred by the Recipient and
concurred in by UNM prior to the date of termination, to the extent
they are noncancellable. The acceptance of a remittance by the Government
of any or all Project Funds previously received by the Recipient or
the closing out of federal financial participation in the Project shall
not constitute a waiver of any claim which the Government may otherwise
have arising out of this Agreement.
Section 107. Project Completion, Settlement, and Close-out. Upon successful
completion of the Project or upon termination by UMM, the Recipient shall,
within 90 days of the ccff,letion date of the Project, submit a final
Financial Status Report (Standard Form 269),-a certification or summary
of Project expenses, and third party audit reports, when applicable. Upon
receipt of this information, UIIA or an agency designated by UNM will
perform a final audit of the Project to determine the allowability of costs
incurred, and will make settlement of the federal grant described in Part I
of this Agreement. If UMM has made payments to the Recipient in excess of
the total amount of such federal assistance, the Recipient shall promptly
remit to UMTA such excess and interest as may be required by section
105(e). Project close-out occurs when LIM notifies the Recipient and
forwards the final grant payment or when an appropriate refund of federal
grant funds has been received frau the Recipient and a6mowledged by UMM.
Close-out shall not invalidate any continuing obligations imposed on the
Recipient by this Agreement or contained in the final notification or
acknowledgement from UMIA.
Section 108. Contracts of the Recipient. The Recipient shall not execute
any lease, pledge, mortgage, lien, or other contract touching or affecting
Project facilities or equipment, nor shall it obligate itself in any other
manner, with any third party with respect to the Project, unless such lease,
pledge, mortgage, lien, contract, or other obligation is expressly authorized
in writing by DOT; nor shall the Recipient, by any act or anission of any
kind, impair its continuing control over the use of Project facilities or
equipimit during the useful life thereof as determined by DOT.
Section 109. Restrictions, Prohibitions, Controls, and Labor Provisions.
(a) Equal Employment Opportunity. In connection with the carrying out
of the Project, the Recipient shall not discriminate against any
enployee or applicant for employment because of race, color, age,
creed, sex, or national origin. The Recipient shall take affirmative
action to ensure that applicants are employed, and that employees
are treated during employment, without regard to their race, color,
religion, sex, age,or national origin. Such action shall include,
but not be limited to, the following: employment, upgrading, demotion
or transfer, recruitment or recruitment advertising, layoff or
termination; rates of pay or other forms of canpensation; and
selection for training, including apprenticeship. The Recipient
shall insert the foregoing provision (modified only to show the
particular contractual relationship) in all of its contracts
in connection with the development or operation of the Project, except
contracts for standard ccnvercial supplies or raw materials and
construction contracts subject to the provisions of Section 110 (a)
of this Agreement, and shall require all such contractors to insert
a similar provision in all subcontracts, except subcontracts for
standard commerical supplies or raw materials.
If, as a - condition of assistance, the Recipient has suhrdtted, arra the
Government has approved, an equal employment opportunity program
that the Recipient agrees to carry out, such program is incorporated
into this Agreement by reference. Such program shall be treated as
a contractual obligation; and failure to carry out the terms of that
equal employment opportunity program shall be treated as a violation
of this Agreemmt. Upon notification to the Recipient of its failure
to carry out the approved program, the Government will impose such
remedies as it may deem appropriate, which remedies may include
termination of the Agreement as provided in Section 106 of this
Agreement or other measures that may affect the ability of the
Recipient to obtain future financial assistance under the Urban
Mass Transportation Act of 1964, as amended, or the Federal Aid
Highway Act of 1973, as amended.
(b) Minority and Women's Business Enterprise. The Recipient shall be
responsible for meeting the applicable regulations regarding
participation by minority business enterprise. (MBE) in Department
of Transportation programs set forth at 49 C.F.R. Part 23, 45 F.R.
21172 et seq., March 31, 1980, or any revision or supplement thereto.
Pursuant to the requirements of section 23.43 of those regulations:
(1) Policy. It is the policy of the Department of ?Transportation
that minority business enterprises, as defined in 49 C.F.R. Part 23,
shall have the maximum opportunity to participate in the performance
of contracts financed in whole or in part with federal funds under
this agreement. Consequently, the MBE requirements of 49 C.F.R.
Part 23 apply to this agreement.
(2) MBE Obligation. The Recipient and its contractors agree to
ensure that minority business enterprises as defined in 49 C.F.R. Part
23 have the maximum opportunity to participate in the performance of
contracts and subcontracts financed in whole or in part with federal
funds provided under this Agreement. In this regard all Recipients and
contractors shall take all necessary and reasonable steps in accordance
with 49 C.F.R. Part 23 to ensure that minority business enterprises have
the maximum opportunity to compete for and perform contracts. Recipients
and their contractors shall not discriminate on the basis of race,
color, national origin or sex in the award and performance of DOT -
assisted contracts.
(3) If as a condition of assistance the Recipient has submitted and
the Department has approved a minority business enterprise affirmative
action program which the Recipient agrees to carry out, this program is
incorporated into this financial assistance agreement by reference.
This program shall be treated as a legal obligation arra failure to carry
out its terms shall be treated as a violation of this financial assistance
agreement. Upon notification to the Recipient of its failure to carry
out the approved program, the Department shall impose such sanctions as
noted in 49 C.F.R. Part 23, Subpart E, which sanctions may include
termination of the Agreement or other measures that may affect the
ability of the Recipient to obtain future DOT financial assistance.
(4) The Recipient shall advise each subrecipient, contractor, and
subcontractor that failure to carry out the requirements set forth in
23.43(a) shall constitute a breach of contract and, after the notification
of the Department, may result in termination of the Agreement or contract
by the Recipient or such remedy as the Recipient deems appropriate.
(5) Recipients shall take action concerning lessees as follows:
(A) Recipients shall not exclude FOE's from participation in
business opportunities by entering into long-term, exclusive agreements
with non -MBE's for operation of major transportation -related activities
for the provision of goods and services to the facility or to the public
on the facility.
(B) Recipients required to submit affirmative action programs
under section 23.41(a)(2) or (a)(3) that have business opportunities for
lessees shall submit to the Department for approval with their programs
overall goals for the participation as lessees of firms owned and controlled
by minorities and firms owned and controlled by womn. These goals
shall be for a specified period of time and shall be based on the factors
listed in section 23.45(g)(5). Recipients shall review these goals at
least annually, and whenever the goals expire. The review shall analyze
projected versus actual. MBE participation during the period covered by
the review and any changes in factual circumstances affecting the selection
9
of goals. Following each review, the Recipient shall submit new overall
goals to the Department for approval. Recipients that fail to meet
their goals for NBE lessees shall demonstrate to the Department in
writing that they made reasonable efforts to meet the goals.
(C) Except as provided in this section, Recipients are requried
to include lessees in their affirmative action programs. Lessees themselves
are not subject to the requirements of this Part, except for the obligation
of section 23.7 to avoid discrimination against NE's.
(6) The Recipient agrees to include the clauses in Subsection (1)
and (2) of Section 109(b) above in all subsequent agreements between the
Recipient and any subrecipient and in all subsequent DOT-assisted contracts
between the Recipient or subrecipients arra any third party contractor.
(c) Title VI Civil Rights Act of 1964. The Recipient will comply and
wi assure the compliance by contractors and subcontractors under
this Project with all the requirements imposed by Title VI of the
Civil Rights Act of 1964 (49 U.S.C. S 2000d), the Regulations of
DOT issued thereunder, 49 C.F.R. Part 21 and the Assurance by the
Recipient pursuant thereto.
(d) Competition in Procurement. The Recipient shall oomply with the
Procurement Standards requirements set forth in Attachment O of CHB
Circular A-102, as amended, or A-110, as may be appropriate; and
with any supplementary guidelines or regulations as may be promulgated,
by the Goverment.
(e) Ethics. The Recipient shall maintain a written code or standards
of—caffuct which shall govern the performance of its officiers,
employees or agents engaged in the awed and administration of
contracts supported by Federal funds. Such code shall provide that
no employee, officer or agent of the Recipient shall participate in
the selection, or in the award or administration of a contract
supported by federal funds if a conflict of interest, real or
apparent, would be involved. Such a conflict would arise when any
of the parties set forth below has a financial or other interest in
the firm selected for award:
10
1. the employee, officer or agent;
2. any nmnber of his immediate family;
3. his or her partner; or
4. an organization which employs, or is about to employ, any
of the above.
The code shall also provide that the Recipient's officers, employees or
agents shall neither solicit nor accept gratuities, favors or anything
of rpnetary value fx= contractors, potential contractors., or parties
to subagree?ment.R.
The recipient may set minim m rules where the financial interest
is not substantial or the gift is an unsolicited item of nominal
intrinsic value.
To the extent permitted by State or local law or regulations, such
standards of conduct shall provide for penalties, sanctions, or
other disciplinary actions for violations of such standards by
the Recipient's officers, employees, or agents, or by contractors
or their agents,,
(f) Interest of Members of or Delegates to Congress. No member of or
delegate to the Congress of the United States shall be admitted
- to any share or part of this agreement or to any benefit arising
therefrom.
Section 110. Construction Contracts.
(a) Nondiscrimination. The Recipient hereby agrees that it will incorporate
or cause to be incorporated into any contract for construction work,
or modification thereof, as defined in the Regulations of the
Secretary of Labor at 41 C.F.R. Chapter 60, which is paid for in
whole or in part with funds obtained from the Federal Government
or borrowed on the credit of the Federal Government pursuant to a
grant, contract, loan, insurance, or guarantee, or undertaken
pursuant to any federal program involving such grant, contract,
loan, insurance, or guarantee, the following equal opportunity
clause:
11
cancelled, terminated, or suspended in whole or in part and
the, contractor may be declared ineligible for further
Government contracts or federally assisted construction
contracts in accordance with procedures authorized in
• Executive Order 11246 of September 24, 1965, as amended,
and such other sanctions may be imposed and remedies invoked
as provided in Executive Order 11246 of September 24, 1965,
as amended, or by rade, regulation, or order of the Secretary
of Labor, or as otherwise provided by law.
(7) The contractor will include the portion of the sentence
immediately preceding paragraph (1) and the provisions of
paragraphs (1) through (7) in every subcontract or purchase
order unless exempted by rules, regulations, or orders of
the Secretary of Labor issued pursuant to Section 204 of
Executive Order 11246 of September 24, 1965, as amended, so
that such provisions shall be binding upon each subcontractor
or vendor. The contractor will take such action with respect
to any subcontract or purchase order as the administering
agency may direct as a means of enforcing such provisions,
including sanctions for noncompliance; Provided, however,
That in the event a contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor
as a result of such direction by the administering agency,
the contractor may request the United States to enter into'
such litigation to protect the interests of the United States.
The Recipient further agrees that it will be bound by the above
_equal opportunity clause with respect to its own employment practices
when it participates in federally assisted construction work; Provided
That if the Recipient so participating is a State or local government,
the above equal opportunity clause is not applicable to any agency,
instrumentality or subdivision of such which does not
participate in work on or under the Agreement.
The Recipient agrees that it will assist and cooperate actively
with the a&unistering agency and the Secretary of Labor in obtaining
the camplianee of contractors arra subcontractors with the equal
opportunity clause and the rules, regulations, and relevant orders
of the Secretary of Labor, that it will furnish the administering
agency and the Secretary of Labor such information as they may
mire for the supervision of such coaplianee, and that it will
otherwise assist the administering agency in the discharge of the
agency's primary responsibility for securing ecnplianee.
The Recipient further agrees that it will refrain from
entering into any contract or contract modification subject to
Executive order 11246 of September 24, 1965, as mvz ed, with any
13
contractor debarred frarn, or who has not demonstrated ellaibility
for Government contracts and federally assisted construction contracts
pursuant to the Executive order and will carry out such sanctions
and penalties for violation of the equal opportunity clause as
may be imposed upon contractors and subcontractors by the administering
agency or the Secretary of Labor pursuant to Part II, Subpart D of
the Executive Order. In addition, the Recipient agrees that if it
fails or refuses to coyly with these undertakings, the administering
agency may take any or all of the following actions: Cancel, terminate,
or suspend in whole or in part this Agreement (grant, contract, loan,
insurance, guarantee); refrain from extending any further assistance
to the Recipient under the program with respect to which the failure
or refund occurred until satisfactory assurance of future compliance
has been received from such Recipient; and refer the case to the
Department of Justice for appropriate legal proceedings.
(b) Specifications. Recipient hereby agrees that it will incorporate or
cause to be incorporated the specifications set forth below in
all federal arra federally assisted eontruction contracts, or modifi-
cations thereof, in excess of $10,000 to be performed in geographical
areas designated by the Director, Office of Federal Contract Compliance
Programs of the Department of Labor pursuant to the Regulations of
the Secretary of Labor at 41 C.F.R. section 60-4.6 and in construction
subcontracts in excess of $10,000 necessary in whole or in past to
the performance of nonconstruction federal contracts and subcontracts
covered under Executive Order 11246:
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION
CONTRACT SPECIFICATIONS (Executive Order 11246):
1. As used in these specifications:
a. "Covered area" means the geographical area
described in the solicitation from which this
contract resulted;
b. "Director".means Director, Office of Federal
Contract Compliance Programs, United States
Department of Labor, or any person to whom the
Director delegates authority;
C. "Employer identification number" means the
Federal Social Security number used on the Employer's
Quarterly Federal Tax Return, U.S. Treasury Depart-
ment Form 941.
14
d. 'Minority" includes:
(i) Black (a ZZ persons having origins in any
of the Black African racial groups not of
Hispanic origin);
(ii) Hispanic (aZZ persons of Mexican, Puerto
Rican, Cuban, Central or South American or
other Spanish Culture or origin, regardless
of race);
(iii) Asian and Pacific Islander (all persons
having origins in any of the original people
of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands); and
(iv) American Indian or Alaskan Native (all
persons having origins in any of the original
people of North America and maintaining
identifiable tribal affiliations through
membership and participation or community
identification).
2. Whenever the contractor, or any subcontractor at any
tier, subcontracts a portion of the work involving any con-
struction trade, it shalt physically include in each subcontract
in excess of $20,000 the provisions of these specifications and
the Notice which contains the applicable goals for minority and
female participation and which is set forth in the solicitations
from which this contract resulted.
3. If the contractor is participating (pursuant to 41
C.F.R. 60-4.5) in the covered area either individually or
through an association, its affirmative action obligations on
all work in the Plan area (including goals and timetables)
shall be in accordance with that Plan for those trades which
have unions participating in the Plan. Contractors must be
able to demonstrate their participation in and compliance with
the provisions of any such Hometown Plan. Each contractor or
subcontractor participating in an approved Plan is individually
required to compZy with its obligations under the EEO clause,
and to make a good faith effort to achieve each goal under
the Plan in each trade in which it has employees. The overall
good faith performance by other contractors or subcontractors
toward a goal in an approved Plan does not excuse any covered
contractor's or 6uboncontractor's failure to take good faith
efforts to achieve the Plan goals and timetables.
15
4. The contractor shall implement the specific affirmative
action standards provided in paragraphs 7a through p of these
specifications. The goals set forth in the solicitation from
which this contract resulted are expressed as percentages
of the total hours of employment and training of minority
and female utilization the contractor should reasonably be
able to achieve in each construction trade in which it has
employees in the coverd area. The contractor is expected to
make substantially uniform progress toward its goal in each
craft during the period specified.
5. Neither the provisions of any collective bargaining
agreement, nor the failure by a union with whom the contractor
has a collective bargaining agreement, to refer either
minorities or women shall excuse the contractor's obligations
under these specifications, Executive Order 11246, or the
regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of
apprentices and trainees to be counted in meeting the goals,
such apprentices and trainees must be employed by the contractor
during the training period, and the contractor must have made
a commitment to employ the apprentices and trainees at the
completion of their training, subject to the availability of
employment opportunities. Trainees must be trained pursuant to
training programs approved by the U.S. Department of Labor.
7. The contractor shall take specific affirmative actions
to ensure equal employment opportunity. The evaluation of
the contractor's compliance with these specifications shalt
be based upon its effort to achieve maximum results from its
actions. The contractor shall document these efforts fully,
and shall implement affirmative action steps at least as
extensive as the foZZowing:
a. EYzsure and maintain a working environment free
of harassment, intimidation, and coercion at all sites,
and in all facilities at which the contractor's employees
are assigned to work. The contractor, where possible,
will assign two or more women to each construction project.
The contractor shall specifically ensure that all foremen,
superintendents, and other on-site supervisory personnel
are aware of and carry out the contractor's obligation
to maintain such a working environment, with specific
attention to minority or female individuals working at
such sites or in such facilities.
16
b. Establish and maintain a current list of minority
and female recruitment sources, provide written notification
to minority and female recruitment sources and to
community organizations when the contractor or its unions
have employment opportunities available, and maintain
a record of the organizations' responses.
c. Maintain a current file of the names, addresses
and telephone numbers of each minority and female off -the -
street applicant and minority or female referral from
a union, a recruitment source or community organization
and of what action was taken with respect to each such
individual. If such individual was sent to the union
hiring halt for referral and was not referred back to
the contractor by the union or, if referred, not employed
by the contractor, this shalt be documented in the file
with the reason therefor, along with whatever additional
actions the contractor may have taken.
d. Provide immediate written notification to the
Director when the union or unions with which the contractor
has a collective bargaining agreement has not referred to
the contractor a minority person or woman sent by the
contractor, or when the contractor has other information
that the union referral process has impeded the contractor's
efforts to meet its obligations.
e. Develop on -the -site training opportunities and/or
_participate in training programs for the area which expressly
include minorities and women, including upgrading programs
and apprenticeship and trainee programs relevant to the
contractor's employment needs, especiaZZy those programs
funded or approved by the Department of Labor. The
contractor shaZZ provide notice of these programs to the
sources compiled under 7 b above.
f. Disseminate the contractor's EEO policy by
providing notice of the policy to unions and training
programs and requesting their cooperation in assisting
the contractor in meeting its EEO obligations; by
including it in any policy manual and collective
bargaining agreement; by publicizing it in the company
newspaper, annual report, etc.; by specific review of
the policy with all management personneZ and with all
minority and female employees at least once a year;
and by posting the company EEO policy on bulletin boards
accessible to all employees at each location where
construction work is performed.
17
g. Review, at least annually, the company's EEO
policy and affirmative action obligations under these
specifications with all employees having any responsi-
bility for hiring, assignment, layoff, termination or
other employment decisions including specific review
of these items with onsite supervisory personnel such
as Superintendents, General Foreman, etc., prior to the
initiation of construction work at any job site. A
written record shall be made and maintained identifying
the time and place of these meetings,persons attending,
subject matter discussed, and disposition of the subject
matter.
h. Disseminate the contractor's EEO policy externally
by including it in any advertising in the news media,
specifically including minority and female news media,
and providing written notification to and discussing the
contractor's EEO policy with other contractors and sub-
contractors with whom the contractor does or anticipates
doing business.
i. Direct its recruitment efforts, both oval and
written, to minority, female and community organizations,
to schools with minority and female students and to
minority and female recruitment and training organizations
serping the contractor's recruitment area and employment
needs. Not later than one month prior to the date for
the acceptance of applications for apprenticeship or
other training by any recruitment source, the contractor
shall send written notification to organizations such
as the above, describing the openings, screening procedures,
and tests to be used in the selection process.
j. Encourage present minority and female employees
to recruit other minority persons and women and, where
reasonable, provide after school,.summer and vacation
employment to minority and female youth both on the site
and in other areas of contractor's workforce.
k. Validate all tests and other selection require-
ments where there is an obligation to do so under 41
C.F.R. Part 60-3.
Z. Conduct, at least annually, an inventory and
evaluation at least of all minority and female personnel
for promotional opportunities and encourage these
employees to seek or to prepare for, through appropriate
training, etc., such opportunities.
18
m. Ensure that seniority practices, job cZassifi-
cations, work assignments and other personnel practices,
do not have a discriminatory effect by continually
monitoring all personnel and employment related activities
to ensure that the EEO policy and the contractor's
obligations under these specifications are being carried
out.
n. Ensure that all facilities and company activities
are nonsegregated except that separate or singZe-user
toilet and necessary changing facilities shall be provided
to assure privacy between the sexes. .
o. Document and maintain a record of all soZicita-
tions of offers for subcontracts from minority and female
construction contractors and suppliers, including circulation
of solicitations to minority and female contractor associa-
tions and other business associations.
p. Conduct a review, at least annually, of all
supervisors' adherence to and performance under the
contractor's EEO policies and affirmative action obli-
gations.
B. Contractors are encouraged to participate in voluntary
associations which assist in fuZfMing one or more of their
affirmative action obligations (74 through p). The efforts
of a contractor association, joint contractor -union, contractor -
community, or other similar group of which the contractor is
a member and participant, may be asserted as fulfilling any
one of more of its obligations under 7a through p of these
Specifications provided that the contractor actively participates
in the group, makes every effort to assure that the group has
a positve impact on the employment of minorities and women
in the industry, ensures that the concrete benefits of the
program are reflected in the contractor's minority and female
workforce participation, makes a good faith effort to meet its
individual goals and timetables, and can provide access to
documentation which demonstrates the effectiveness of actions
taken on behalf of the contractor. The obligation to comply,
however, is the contractor's and failure of such a group to
fulfill an obligation shalt not be a defense for the contractor's
noncompliance.
9. A single goal for minorities and a separate single
goat for women have been established. The contractor, however,
is required to provide equal employment opportunity and to
take affirmative action for all minority groups, both male
19
and female, and all women, both minority and non-minority.
Consequently, the contractor may be in violation of the
Executive Order if a particular group is employed in a
substantially disparate manner (for example, even though
the contractor has achieved its goals for women generally,
the contractor may be in violation of the Executive Order
if a specific minority group of women is underutiliaed).
10. The contractor shall not use the goals and timetables
or affirmative action standards to discriminate against any
person because of race, color, religion, sex, or national
origin.
11. The contractor shall not enter into any subcontract
with any person or firm debarred from Government contracts
pursuant to Executive Order 11246.
12. The contractor shall carry out such sanctions and
penalties for violation of these specifications and of the
Equal Opportunity Clause, including suspension, termination
and cancellation of existing subcontracts as may be imposed
or ordered pursuant to Executive Order 11246, as amended,
and its implementing regulations by the Office of Federal
Contract Compliance Programs. Any contractor who fails
to carry out such sanctions and penalties shall be in
violation of these specifications and Executive Order 11246,
as amended.
13. The contractor, in fulfulling its obligations under
these specifications, shall implement specific affirmative
action steps, at least as extensive as those standards
prescribed in paragraph 7 of these specifications, so as to
achieve maximum results from its efforts to ensure equal
employment opportunity. If the contractor fails to comply
with the requirements of the Executive Order, the implementing
regulations, or these specifications, the Director shall
proceed in accordance with 41 C.F.R. 60-4.8.
14. The contractor shall designate a responsible official
to monitor all employment related activity to ensure that the
company EEO policy is being carried out, to submit reports
relating to the provisions hereof as may be required by the
Government and to keep records. Records shall at least include
for each employee the name, address, telephone numbers,
construction trade, union affiliation if any, employee
identification number when assigned, social security number
race, sex, status (e.g., mechanic,apprentice, trainee, helper,
20
I
or laborer), dates of changes in status, hours worked
per week in the indicated trade, rate of pay, and locations
at which the work was performed. Records shall be maintained
• in an easily understandable and retrievable form; however,
to the degree that existing records satisfy this requirement,
contractors shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a
limitation upon the application of other laws which establish
different standards of.compZiance or upon the application
of requirements for the hiring of local or other area residents
(e.g., those under the Public Works Employment Act of 1977
and the Community Development Block Grant Program.)
(c) Notice. Recipient hereby agrees that it will ensure that the
notTi.ce set forth below shall be included in, arra shall be a part
of, all solicitions for offers and bids on all federal arra federally
assisted construction contracts or suboontracts in excess of $10,000
to be performed in geographical areas designated by the Director,
Office of Federal Contract Compliance Programs of the Department
of Labor at 41 C.F.R. Section 6074.6:
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL
EMPLOYMENT OPPORTUNITY (Executive Order 11246):
- 1. The Offeror's or Bidder's attention is called to
the "Equal Opportunity Clause" and the "Standard Federal
Equal Ebnployment Opportunity Construction Contract Specifi-
cations" set forth herein.
_ 2. The goals and timetables for minority and female
participation, expressed in percentage terms for the
contractor's aggregate workforce in each trade on all
construction work in the covered area, are as follows:
Timetable Goals for Goals for female
minority participation participation in
for each trade. each trade
Insert goals for Insert goals for
each year. each year.
These goals are applicable to all the contractor's con-
struction work (whether or not it is federal or federally
assisted) performed in the covered area.
21
The contractor's compliance with the Executive Order and the
regulations in 41 C.F.R. Part 60-4 shaZZ be based on its imple-
mentation of the Equal Opportunity Clause, specific affirmative
action obligations required by the specifications set forth in
41 C.F.R. 60-4.3(a), and its efforts to meet the goals established
for the geographical area where the contract resulting from this
solicitation is to be performed. The hours of minority and female
employment and training must be substantially uniform throughout
the length of the contract, and in each trade, and the contractor
shall make a good faith effort to employ minorities and women
evenly on each of its projects. The transfer of minority or female
employees or trainees from contractor to contractor or from project
to project for the sole purpose of meeting the contractor's goals
shall be a violation of the contract, the Executive Order and the
regulations in 41 C.F.R. Part 60-4. Compliance with the goals will
be measured against the total work hours performed.
3. The contractor shall provide written notification
to the Director of the Office of Federal Contract Compliance
Programs within Zo working days of award of any construction
subcontract in excess $10,000 at any tier for construction
work under the contract resulting from this solicitation.
The notification shalt list the name, address and telephone
number of the subcontractor; employer identification number;
estimated dollar amount of the subcontract; estimated starting
and completion dates of the subcontract; and the geographical
area in which the contract is to be performed.
4. As used in this Notice, and in the contract resulting
from this solicitation, the "covered area" is (insert
description of the geographical areas where the contract
- is to be performed giving the State, county and city, if any).
(d) Labor Provisions. Pursuant to regulations set forth at 29
C.F.R.the following provisions shall be incorporated in all
construction contracts of $2,000 let by the Recipient in carrying
out the Project.
(1) Minimum wages. (i) All mechanics and laborers
employed or working upon the site of the work, will be paid
unconditionally and not less often than once a week, and
without subsequent deduction or rebate on any account
(except such payroll deductions as are permitted by regu-
Zations issued by the Secretary of Labor under the Cope-
land Act (29 C.F.R. Part 3)), the full amounts due at
time of payment computed at wage rates not less than
22
those contained in the wage determination decision
of the Secretary of Labor applicable to the Project,
regardless of any contractual relationship which may
be alleged to exist between the contractor and such
laborers and mechanics; and the wage determination
decision shaZZ be posted by the contractor at the site
of the work in a prominent place where it can be
easily seen by the workers. For the purpose of this
clause, contributions made or costs reasonably antici-
pated under section Z(c)(2) of the Davis -Bacon Act on
behalf of laborers or mechanics are considered wages
paid to such laborers or mechanics, subject to the
provisions of 29 C.F.R. 5.5 (a)(t)(iv). Also for the
purpose of this clause, regular contributions made or
costs incurred for more than a weekly period under plans,
funds, or programs, but covering the particular weekly
period, are deemed to be constructively made or incurred
during such weekly period.
(ii) The contracting officer shaZZ require that any
class of laborers or mechanics, including apprentices
and trainees, which is not listed in the wage determination
and which is to be employed under the contract, shall be
classified or reclassified conformably to the wage deter-
mination, and a report of the action taken shall be sent
by DOT to the Secretary of Labor. In the event the interested
parties cannot agree on the proper classification or recZassifi-
cation of a particular class of laborers and mechanics,
including apprentices and trainees, to be used, the question
accompanied by the recommendation of the contracting officer,
shalt be referred to the Secretary of Labor for final
determination.
(iii) The contracting officer shalt require, whenever
the minimum wage rate prescribed in the contract for a
class of laborers or mechanics includes a fringe benefit
which is not expressed as an hourly wage rate and the
contractor is obligated to pay a cash equivalent of such
a fringe benefit, an hourly cash equivalent thereof to
be established. In the event the interested parties
cannot agree upon a cash equivalent of the fringe benefit,
the question, accompanied by the recommendation of the
contracting officer, shaZZ be referred to the Secretary
of Labor for determination.
23
(iv) If the contractor does not make payments to a
trustee or other third person, he may consider as part of
the wages of any laborer or mechanic the amount of any costs
reasonably anticipated in providing benefits under a plan
or program of a type expressly listed in the wage determination
decision of the Secretary of Labor which is a part of this
contract: Provided, however, the Secretary of Labor has
found, upon the written request of the contractor, that the
applicable standards of the Davis -Bacon Act have been met.
The Secretary of Labor may require the contractor to set
aside in a separate account assets for the meeting of
obligations under the plan or program.
(2) Withholding. DOT may withhold or cause to be
withheld from the contractor so much of the accrued payments
or advances as may be considered necessary to pay laborers
and mechanics, including apprentices and trainees, employed
by the contractor or any subcontractor on the work the full
amount of wages required by the contract. In the event of
failure to pay any laborer or mechanic, including any
apprentice or trainee, employed or working on.the site of
the work, all or part of the wages required by the contract,
DOT may, after written notice to the contractor, sponsor,
applicant, or owner, take such action as may be necessary
to cause the suspension of any further payment, advance,
or guarantee of funds until such violations have ceased.
(3) Payroll and Basic Records. (i) Payrolls and basic
records relating thereto will be maintained during the course
of the work and preserved for a period of three years thereafter
for all laborers and mechanics working at the site of the work.
Such records will contain the name and address of each such
employee, his correct classification, rates of pay (including
rates of contributions or costs anticipated of the types
described in section 1(b)(2) of the Davis -Bacon Act), daily
and weekly number of hours worked, deductions made and actual
wages paid. Whenever the Secretary of Labor has found under
29 C.F.R. 5.5 (a)(1) (vi) that the wages of any laborers or
mechanics include the arnount of any costs reasonably anticipated
in providing benefits under a plan or program described in
section 1(b) (2)(B) of the Davis -Bacon Act, the contractor
shall maintain records which show that the commitment to
provide such benefits is enforceable, and that the plan
or program is financially responsible, and that the plan
or program has been communicated in writing to the laborers
or mechanics affected, and records which show the costs
anticipated or the actual cost incurred in providing such
benefits
24
(ii) The sontraetor will submit weekly a Copy of all
payrolls to the Recipient for transmittal to DOT. The Dopy
shaZZ be accompanied by a statement signed by the employer
or his agent indicating that the payrolls are correct and
complete, that the mage rates contained therein are not
less than those determined by the Secretary of Labor and
that the classifications set forth for each laborer or
mechanic conform to the work to be performed. A submission
of the "Weekly Statement of Compliance" which is required under
this contract and the Copeland regulations of the Secretary
of Labor (29 C.F.R., Part 3) and the filing with the initial
payroll or any subsequent payroll of a copy of any findings
by the Secretary of Labor under 29 C.F.R. 5.5 (a)(1)(iv)
shalt satisfy this requirement. The prime contractor shaZZ
be responsible for the submission of copies of payrolls of
all subcontractors. The contractor will make the records
required under the labor standards cZauses of the contract
available for inspection by authorized representatives of
DOT and the Department of Labor, and will permit such
representatives to interview employees during working hours
on the job.
Contractors employing apprentices or trainees under approved
programs shalt include a notation on the first weekly certified
payrolls submitted to the contracting agencies that their employ-
ment is pursuant to an approved program and shaZZ identify the
program.
(4) Apprentices and Trainees.
(A) Apprentices. Apprentices will be permitted to work
at less than the predetermined rate for. the work they perform
when they are employed and individually registered in a bona
fide apprenticeship program registered with the U.S. Depart-
ment of Labor, Employment and Training Administration,
Bureau of Apprenticeship and Training, or with a State
Apprenticeship Agency recognized by the Bureau, or if a person
is employed in his first 90 days of probationary employment
as an apprentice'in such an apprenticeship program, who is
not individually registered in the program, but who has been
certified by the Bureau of Apprenticeship and Training or
a State Apprenticeship Agency (inhere appropriate) to be
eligible for probationary employment as an apprentice. The
allowable ratio of apprentices to journeymen in any craft
Classification shalt not be greater than the ratio permitted
to the contractor as to his entire work force under the
registered program. Any employee listed on a payroll at
25
an apprentice wage mate, who is not a trainee as defined in
subdivision (B) of this subparagraph or is not registered or
otherwise employed as stated above, shall be paid the wage
rate determined by the Secretary of Labor for the classification
of work he actually performed.
The contractor or subcontractor will be required to
furnish to the contracting officer or a representative of
the Wage -Hour Division of the U.S. Department of Labor
written evidence of the registration of his program and
apprentices as well as the appropriate ratios and wage
rates (expressed in percentages of the journeyman hourly
rates) for the area of construction prior to using any
apprentices on the contract work. The wage rate paid
apprentices shall not be less than the appropriate percentage
of the journeyman's rate contained in the applicable wage
determination.
(B) Trainees. Except as provided in 29 C.F.R. 5.15, trainees
will not be permitted to work at less than the predetermined
rate for the work performed unless they are employed pursuant
to or individually registered in a program which has received
prior approval, evidenced by formal certification, by the U.S.
Department of Labor, Employment and Training Administration,
Bureau of Apprenticeship and Training. The ratio of trainees
to ,journeymen shall not be greater than that permitted under
the plan approved by the Bureau of Apprenticeship and Training.
Every trainee must be paid at not less than the rate specified
in the approved program for his level of progress. Any
employee listed on the payroZZ at a trainee rate who is not
registered and participating in a training plan approved by
the Bureau of Apprenticeship and Training shall be paid not
less than the wage rate determined by the Secretary of Labor
for the classification of work he actually performed. The
contractor or subcontractor will be required to furnish the
contracting officer or a representative of the Wage -Hour
Division of the U.S. Department of Labor written evidence
of the certification of his program, the registration of
the trainees, and the ratios and wage rates prescribed in that
program. In the event the Bureau of Apprenticeship and
Training withdraws approval of a training program, the
contractor will no longer be permitted to utilize trainees
at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(C) Equal Employment Opportunity. The utilization of
apprentices, trainees and journeymen under this part shall
be in conformity with the equal employment opportunity
requirements of Executive Order 11246, as amended, and
29 C. F. R. Part 30.
26
(5) Compliance with Copeland Regulations (29 C.F.R. Part 3).
The contractor shalZ comply with the Copeland Regulations
(29 C.F.R. Part 3) of the Secretary of Labor which are herein
incorporated by reference.
(6) Contract Termination; Debarment.
A breach of clauses (1) through (5) may be grounds
for termination of the contract, and for debarment as provided
in 29 C.F.R. 5.6.
(7) Overtime Requirements.
No contractor or subcontractor contracting for any part
of the contract work which may require or involve the employ-
ment of laborers or mechanics shaZZ require or permit any
laborer or mechanic in any workweek in which he is employed
on such work to work in excess of eight hours in any calendar
day or in excess of forty hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less
than one and one-half times his basic rate of pay for all
hours worked in excess of eight hours in any calendar day or
in excess of forty hours in such workweek, as the case may be.
(8) Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in
subparagraph (7), the contractor and any subcontractor
responsible therefor shaZZ be liable to any affected employee
for his upaid wages. In addition, such contractor and sub-
contractor shall be liable to the United States (in the case
of work done under contract for the District of Columbia or a
territory, to such District or to such territory), for
liquidated damages. Such liquidated damages ehaZZ be computed
with respect to each individual laborer or mechanic employee
in violation of the clause set forth in 'subparagraph (7), in
the sum of $10 for each calendar day on which such employee
is required or permitted to work in excess of eight hours or
in excess of the standard workweek of forty hours without
payment of the overtime wages required by the clause set forth
in subparagraph (7).
(9) Withholding for Liquidated Damages.
DOT may withhold or cause to be withheld, from any moneys
payable on account of work performed by the contractor or
subcontractor, such sums as may administratively be determined
27
to be necessary to satisfy any liabilities of such contractor
or subcontractor for liquidated damages as provided in the
clause set forth in subparagraph (8).
(10) Final Labor Summary.
The contractor and each subcontractor shall furnish to
the Recipient, upon the completion of the contract, a summary
of all employment, indicating, for the completed Project,
the total hours worked and the total amount earned.
(11) Final Certificate.
Upon completion of the contract, the contractor shaZZ
submit to the Recipient with the voucher for final payment
for any work performed under the contract a certificate
concerning wages and classifications for laborers and
mechanics, including apprentices and trainees employed
on the Project, in the following form:
The undersigned, contractor on
(Contract No. )
hereby certifies that all laborers, mechanics, apprentices
and trainees employed by him or by a subcontractor performing
work under the contract on the Project have been paid wages
at rates not less than those required by the contract
provisions, and that the work performed by each such laborer,
mechanic, apprentice or trainee conformed to the classifications
set forth in the contract or training program provisions
applicable to the wage rate paid.
Signature and title
(12) Notice to the Recipient of Labor Disputes.
Whenever the contractor has knowledge that any actual
or potential labor dispute is delaying or threatens to delay
the timely performance of this contract, the contractor shall
immediately give notice thereof, including all relevant in-
formation with respect thereto, to the Recipient.
(13) Disputes Clause.
(i1 All disputes concerning the payment of prevailing
wage rates or cZassification shaZZ be promptly reported to
28
the Recipient for its referral to DOT for decision or, at the
option of DOT, DOT referral to the Secretary of Labor. The
decision of DOT or the Secretary of Labor as the case may be,
shall be final.
(ii) All questions relating to the application or
interpretation of the Copeland Act, 40 U.S.C. S 276c, the
Contract Work Hours Standards Act, 40 U.S.C. SS 327-333, the
Davis -Bacon Act, 40 U.S.C. S 276a, or Section 13 of
the Urban Mass Transportation Act, 49 U.S.O. S 2609, shall
be sent to UMTA for referral to the Secretary of Labor for
ruling or interpretation, and such ruling or interpretation
shall be final.
(14) Convict Labor.
In connection with the performance of work under this
contract the contractor agrees not to employ any person
undergoing sentence of imprisonment at hard labor. This
does not include convicts who are on parole or probation.
(15) Insertion in Subcontracts.
The contractor shall insert in all construction subcontracts
the clauses set forth in subsections (1) through (15) of this
section so that all of the provisions of this section will be
inserted in all construction subcontracts of any tier, and such
other clauses as the Government may by appropriate instructions
require.
(e) Changes in Construction Contracts. Any changes in a construction
contract shall be subanitted to DOT for prior approval unless the
gross amount of the changes is $100,000 or less, the contract was
originally awarded on a ccmoetitive basis, and the change does
not change the scope of work or exceed the contract period.
Construction contracts shall include a provision specifi.ying that
the above requirenLent will be net.
(f) Contract Security. The Recipient shall follow the requirements
of CMB Circular A-102,.as Wended, or A-110, as may be appropriate,
and UMIA guidelines with regard to bid guarantees and bonding requirements.
(g) Insurance During Contruction. The Recipient shall follow the
insurance requirements normally required by their State -and
local govern= eats .
(h) Signs. The Recipient shall cause to be erected at the site of
construction, and maintained during construction, signs
29
satisfactory to DOT identifying the Project and indicating that the
Goverment is participating in the development of the Project.
fi) Liquidated Damages Provision. Rize Recipient shall include in all contracts
for construction, a clause satisfactory to DOT providing for liquidated
damages, if (1) DOT may reasonably expect to suffer damages (increased
costs on the grant project involved) from the late completion of the
construction and (2) the extent or amount of such damages would be
difficult or impossible to assess. The assessment for damages shall be
at a specified rate per day for each day of overrun in contract time
deducted fram payments otherwise due the contractor. This rate, which
must be satisfactory to DOT, must be specified in the contract.
(j) Provisions of Construction Contract. The terms and conditions of each
ompetitively bid construction contract are subject to prior approval by
DOT if the -estimated cost will exceed $25,000, unless and to the extent
that such prior approval is waived in writing by DOT. In addition to the
requirements of this Section 110, each construction contract shall
contain, among others, provisions required by subsections (e), and (f)
of Section 109 hereof.
(k) Actual Work by Contractor. The Recipient shall require that a construction
contractor perform, on the site and with his own staff, work equivalent
to at least 10 percent of the total amount of construction work covered
by his contract.
(1) Force Account. If costs of construction performed by employees of the
Recipient are estimated to exceed $25,000, prior approval of DOT must
be obtained or else such costs may not be included as eligible
Project Costs.
(m) Safety Standards. Pursuant to Section 107 of the Contract Work
Hours ander Standards Act and Department of Labor Regulations at
29 C.F.R. § 1926, no laborer of mechanic working on a construction
contract shall be required to work in surroundings or under work-
ing conditions which are unsanitary, hazardous, or dangerous to
his or her health and safety as determined under construction
and health standards promulgated by the Secretary of Labor.
Section 111. Environmental, Resource, arra Energy Protection and Conservation
Requirements.
(a) Canpliance with Environmental Standards. The Recipient shall
campy with the provisions of the C can Air Act, as amended (42
U.S.C. S 1857 et seq.); the Federal Water Pollution Control Act, as
amended (33 U.S.C. 5 1251 et seq.); and implenienting regulations,
in the facilities which are involved in the Project for which
federal assistance is given. The Recipient shall ensure that the
facilities under ownership, lease or supervision, whether directly
or under contract, that shall be utilized in the accomplishment of
the Project are not listed on the EPA's List of Violating Facilities.
Contracts, subcontracts, and subgrants of amounts in excess of
$100,000 shall contain a provision which requires ocmpliance with
all applicable standards, orders, or requirements issued under
Section 306 of the Clean Air Act (42 U.S.C. 1857(h)), Section 508
of the Clean Water Act (33 U.S.C. 1368), Executive Order No. 11738,
and Environmental Protection Agency (EPA) regulations (40 C.F.R.
Part 15). The Recipient arra any third -party contractor thereof
shall be responsible for reporting any violations to iMM and to
30
the EPA Assistant Administrator for Enforcement. In addition, the.
Recipient shall notify UWA of the receipt of any eannmication
from the Director of the EPA Office of Federal Activities indicating
that a facility to be utilized in the Project is under consideration
for listing in EPA. _
(b) Air Pollution. No facilities or equipment shall be acquired, constructed.
or improved as a part of the Project unless the Recipient obtains satis-
factory assurances that they are (or will be) designed and equipped to
limit air pollution as provided in the External Operating Manual and
in accordance with all other applicable standards.
(c) Use of Public Lands. No publicly awned land from a park, recreation area,
or wildlife and waterfowl refuge of national, State, or local significance
as determined by the Federal, State or local officials having jurisdiction
thereof, or any land from an historic site of national, State, or local
significance as so determined by such officials may be used for the
Project without the prior concurrence of DOT.
(d) Historic Preservation. The Recipient shall assist UMCA in its compliance
with Section 106 of the National Historic Preservation Act of 1966, as
amended (16 U.S.C. 470), Executive Order No. 11593, and the Archeological
and Historic Preservation Act of 1966 (16 U.S.C. 469a-1 et seq.) by (a)
consulting with the State Historic Preservation Officer on the conduct
of investigations, as necessary, to identify.properties listed in or
eligible for inclusion in the National Register of Historic Places that
are subject to adverse effects (see 36 C.F.R. Part 800.8) by the activity,
and notifying UMrA of the existence of any such properties, and by (b)
ocinplying with all requirements established by UMCA to avoid or mitigate
adverse effects upon such properties.
(e) -Energy Conservation. The Recipient and its third party contractors shall
recognize mandatory standards and policies relating to energy efficiency
which are contained in the State energy conservation plan issued in compliance
with the Energy Policy and Conservation Act (P.L. 94-163).
Section 112. Patent Rights.
(a) Whenever any invention, improvement, or discovery (whether or not patentable)
is conceived or for the first time actually reduced to practice, by the
Recipient or its employees, in the course of, in connection with, or under
the terns of this Agreement, the Recipient shall inuediately give the
Secretary of DOT, through UMI'A, or his authorized representative written
notice thereof; and the Secretary shall have the sole and exclusive power
to determine whether or not and where a patent application shall be filed,
and to determine the disposition of all rights in such. invention, improve-
ment, or discovery, including title to and rights under any patent appli-
cation or patent that may issue thereon. The determination of the
Secretary on all these matters shall be accepted as final, arra the Recipient
agrees that it will, and warrants that all of its employees who may be
the inventors will, execute all documents and do all things necessary
or proper to the effectuation of such determination.
31
(b) Except as otherwise authorized in writing by the Secretary or
his authorized representative, the Recipient shall obtain patent
agreements to effectuate the provisions of this clause from all
persons who perform any part of the work under this Agreement,
except such clerical and manual labor personnel as will have no
access to technical data.
(c) Except as otherwise authorized in writing by the Secretary or
his authorized representative, the Recipient will insert in each
third -party contract having design, test, experimental, develop-
mental, or research work as one of its purposes, provisions
making this clause applicable to the third -party contractor and
its employees.
(d) (1) The Recipient and the third party contractor, each, may reserve
a revocable, nonexclusive, royalty -free license in each patent
application filed in any country on each invention subject to this
clause and resulting patent in which the Government acquires title.
The license shall extend to the third -Party contractor's domestic
subsidiaries and affiliates, if any, within the corporate structure
of which the third -party contractor is a part arra shall include the
right to grant sublicenses of the same scope to the extent the
third -party contractor was legally obligated to do so at the time
the contract was awarded. The license shall be transferable only
with approval of UMrA except when transfered to the successor of
that part of the third -party contractor's business to which the
invention pertains.
(2)- The third -party contractor's nonexclusive domestic license
retained pursuant to paragraph (d)(1) of this clause may be revoked
or modified by UMTA to the extent necessary to achieve expeditious
practical application of the Subject Invention under 41 C.F.R.
101-4.103-3 pursuant to an application for exclusive license submitted
in accordance with 41 C.F.R. 101-4.104-3. This license shall not
be revoked in that field of use and/or the geographical areas in
which the third -party contractor has brought the invention to the
point of practical application and continues to make the benefits
of the invention reasonably accessible to the public. The third -
party contractor's nonexclusive license in any foreign country
reserved pursuant to paragraph (d)(1) of this clause may be revoked
or modified at the discretion of UMI'A to the extent the third -party
contractor or his darnstic subsidiaries or affiliates have failed
to achieve the practical application of the invention in that
foreign country.
(3) Before modification or revocation of the license, pursuant to
paragraph (d)(2) of this clause, UMI'A shall furnish the third -party
contractor a written notice of its intention to modify or revoke the
32
license, and the third -party contractor shall be allowed 30 days
(or such longer period as may be authorized by WrA for good cause
shown in writing by the third -party contractor) after the notice to
show cause why the license should not be modified or revoked. The
third -party contractor shall have the right to appeal, in accordance
with procedures prescribed by LMM any decision concerning the
modification or revocation of his license.
(e) In the event no inventions, improvesnents,or discoveries (whether
or not patentable) are conceived, or for the first time actually
reduced to practice by the Recipient, its employees, its third -
party contractors, or their employees, in the course of, in
connection with, or under the terms of this Agreement, the Recipient
shall so certify to the Secretary or his authorized representative,
no later than the date on which the final report of work done, is
due.
(f) If the Recipient or the third -party contractor is permitted to file
patent applications pursuant to this Agreement, the following
statement shall be included within the first paragraph of the
specification of any such patent application or patent:
The invention described herein was made in the course
of, or under, a Project with the Department of Trans-
portation.
(g) In the event the Recipient or the third -party contractor is permitted
to acquire principal rights pursuant to this clause and fails to
- take effective steps within 3 years after issuance of a patent
on any patent applications permitted to be filed pursuant to this
clause to bring the clauned'invention to the point of practical
application, the Secretary or his authorized representative may
revoke such rights or require the assignment of such rights to the
Government.
(h) The Secretary or his authorized representative shall, before the
expiration of three (3) years after final payment under this
grant, have the right to examine any books, records, documents,
and other supporting data of the Recipient which the Secretary or
his authorized representative shall reasonably deem directly
pertinent to the discovery or identification of inventions
falling within the criteria set out in paragraph (a), or to
compliance by the Recipient with the requirements of this clause.
She Secretary or his authorized representative shall, during
the period specified above, have the further right to require the
Recipient to examine any books, records, documents, and other
supporting data of the third -party contractor which the Recipient
shall reasonably dean directly pertinent to the discovery or
33
identification of inventions falling within the criteria set
out in paragraph (a) or to oopliance by the third -party
contractor with the requirements of the patent rights clause
of the third party contract.
Section 113. Rights in Data.
(a) The team "subject data" as used herein means recorded information,
whether or not copyrighted, that is delivered or specified to be
delivered under this Agreement. The team includes graphic or
pictorial delineations in media such as drawings or photographs;
text in specifications or related performance or design -type
documents; machine forms such as punched cards, magnetic tape,
or computer memory printouts; and information retained in carputer
memory. Examples include, but are not limited to, engineering
drawings and associated lists, specifications, standards, process
sheets, manuals, technical reports, catalog item identifications,
and related information. The term does not include financial
reports, cost analyses, and similar information incidental to
contract administration.
(b) All "subject data" first produced in the performance of this Agree-
ment shall be the sole property of the Goverrvient. The Recipient
agrees not to assert any rights at camion law or equity and not
to establish any claim to statutory copyright in such data. Except
for its own internal use, the Recipient shall not publish or
reproduce such data in whole or in part, or - in any manner or form,
nor authorize others to do so, without the written consent of the
Govern¢nent until such time as the Government may have released
such data to the public; this restriction, however, does not
apply to Agreements with Academic Institutions.
(c) The Recipient agrees to grant and does hereby grant to the Govern-
ment arra to its officers, agents, and employees acting within the
scope of their official duties, a royalty -free, nonexclusive,
and irrevocable license throughout the world (1) to publish,
translate, reproduce, deliver, perform, use, and dispose of, in
any manner, any and all data not first produced or cmip osed in
the performance of this Agreement but which is incorporated in
the work furnished under this Agreement; and (2) to authorize
others so to do.
(d) The Recipient shall indemnify and save and hold harmless the Govern-
ment, its officers, agents, and employees acting within the scope
of their official duties against any liability, including costs
arra expenses, resulting from any willful or intentional violation
by the Recipient of proprietary rights, copyrights, or rights of
34
•, privacy, arising out of the publication, translation, reproduction,
delivery, performance, use, or disposition of any data furnished
under this Agreement.
(e) Nothing contained in this clause shall imply a license to the
Government under any patent or be construed as affecting the
scope of any license or other right otherwise granted to the
Government under any patent.
(f) In the event that the Project, which is the subject of this Agreement,
is not completed, for any reason w+hatsover, all data generated
under that Project shall beoome subject data as defined in the
Rights in Data clause in this Agreement and shall be delivered as
the Government may direct. This clause shall be included in all
third party contracts under the Project.
(g) Paragraphs (c) and (d) above are not applicable to material furnished
to the Recipient by the Government and incorporated in the work
furnished under the contract: provided that such incorporated material
is identified by the Recipient at the time of delivery of such
work.
Section 114. Cargo Preference - Use of United States -Flag Vessels.
(a) 46 U.S.C. S 1241 provides in pertinent part as follows:
(b) (1) Whenever the Uaited States shall procure, contract
for, or otherwise obtain for its own account, or shall furnish to
or for the account of any foreign nation without provision for
reimbursement, any equipment, materials, or commodities, within
or without the United States, or shall advance funds or credits
or guarantee the convertibility of foreign currencies in connection
with the furnishing of such equipment, materials, or commodities,
the appropriate agency or agencies shall take such steps as may
be necessary and practicable to assure that at least 50 per. centum
of the gross tonnage of such equipment, materials, or commodities
(computed separately for dry bulk carriers, dry cargo liners, and
tankers), which may be transported on privately awned United States -
flag commercial vessels, to the extent such vessels are available
at fair and reasonable rates for United States -flag commercial
vessels, in such mariner as will insure a fair arra reasonable partici-
pation of United States -flag commercial vessels in such cargoes
by geographic areas: ... .
(2) Every department or agency having .responsibility under
this subsection shall administer its programs with respect to
this subsection under regulations issued by the Secretary of
Commerce ... e
35
r i �
(b) Pursuant to regulations published by the Secretary of C crwxce at
46 C.F.R. Part 381, the Recipient agrees to insert the following
clauses in all contracts let by the Recipient under which equipment,
materials or oamtiodities may be transported by ocean vessel in
darrying out the Project:
The contractor agrees
(Z) To utilize privately owned United States -flag commercial
vessels to ship at least 50 percent of the gross tonnage (computed
separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, materials, or commodities
pursuant to this section, to the extent such vessels are available
at fair and reasonable rates for United States-fZag commercial
vessels.
(2) To furnish within 30 days following the date of loading
for shipments originating within the United States, or within 30
working days following the date of loading for shipment originating
outside the United States, a legible copy of a rated, "on -board"
commercial ocean biZZ-of-lading in English for each shipment of
cargo described in paragraph (Z) above to the Recipient (through
the prime contractor in the case of subcontractor bilZs-of-lading)
and to the Division of National Cargo, Office of Market Develop-
ment, Maritime Administration, Washington, D.C. 20230, marked
with appropriate identification of the Project.
(3) To insert the substance of the provisions of this clause
in all subcontracts issued pursuant to this contract.
Section 115. Buy America.
Pursuant to Section 401 of the Surface Transportation Assistance
Act of 1978 P.L. 95-599, Ncv. 6, 1978, and regulations published
thereunder, the Recipient agrees that if the total cost of this
Project or any amendment thereto exceeds $500,OOO,and if funds therefor
are obligated by the Goverment after November 6, 1978, the Recipient
shall require with respect to any third Party contract thereunder
that exceeds $500,000 that only such urmanufactured articles, materials,
and supplies as have been mined or produced in the United States,
and only such manufactured articles, materials, and supplies as have
been manufactured in the United States substantially all from
articles, materials, and supplies mined, produced, or manufactured,
as the case may be, in the United States, will be used in such Project,
unless a waiver of these provisions is --granted.
•36
a u w
Upon written request to the Secretary, the Recipient may request
a waiver of the above provisions. Such waiver may be granted if
the Secretary determines:
(1) their application would be inconsistent with the public
interest;
(2) in the case of acquisition of rolling stock, their appli-
cation would result in unreasonable cost (after granting appropriate
price adjustments to domestic products based on that portion of
Project cost likely to be returned to the United States and to
the States in the form of tax revenues);
(3) supplies of the class or kind to be used in the manufacture
of articles, materials, supplies are not mined, produced, or
manufactured in the United States in sufficient and reasonably
available quantities and of a satisfactory quality; or
(4) that inclusion of domestic material will increase the
cost of the overall Project contract by more than 10 per centum.
Section 116. Charter and School Bus Operations.
(a) Charter Bus. The Recipient, or any operator of mass transportation,
acting on its behalf, shall not engage in charter bus operations
outside the urban area within which it provides regularly scheduled
mass transportation service, except as provided under Section 3(f)
of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C.
S 1602(f), and regulations published thereunder.
(b) School Bus. The Recipient, or any operator of mass transportation
acting on its behalf, shall not engage in school bus operations,
exclusively for the transporation of students or school personnel,
in competition with private school bus operators, except as
provided under Section 3(g) of the Urban Mass Transportation Act
of 1964, as amended, 49 U.S.C. S 1602(q) and recmlations vublished
thereunder.
Section 117. Compliance with Elderly and Handicapped Regulations.
The Recipient shall insure that all fixed facility construction or
alteration and all new equipment included in the Project cmply with
applicable regulations regarding Transportation for Elderly and Handi-
capped Persons, set forth at 49 C.F.R. Part 27.
Section 118. Flood Hazards.
The Recipient shall comply with the flood insurance purchase require-
ments with respect to construction or acquisition purposes, of
Section 102(x) of the Flood Disaster Protection Act of 1973,
42 U.S.C. S 4012(a).
37
y +s •
Section 119. Privacy.
Should the Recipient, its third party contractors or its employees
administer any system of records on behalf of the Federal Govenment,
the following terms and conditions are applicable.
(a) The Recipient agrees:
(1) to Imply with the Privacy Act of 1974, 5 U.S.C. S 552a
(the Act) and the rules and regulations issued pursuant to the Act wizen
performance under the contract involves the design,. development,
or operation of any system of records on individuals to be
operated by the Recipient, its contractors or employees to
acocamplish a Government function;
(2) to notify the Government when the Recipient anticipates
operating a system of records on behalf of the Government in order
to accomplish the requirements of this Agreement, if such
system contains information about individuals which will be
retrieved by the individual's name or other identifier assigned
to the individual. A system of records subject to the Act
may not be employed in the performance of this Agreement until
the necessary approval and publication requirements applicable
to the system have been carried out. The Recipient agrees to
correct, maintain, disseminate, and use such records in
accordance with the requirements of the Act, and to omply
with all applicable requirements of the Act;
(3) to include the Privacy Act Notification contained
in this Agreement in every third party contract solicitation
and in every third party contract when the performance of
work under the proposed third party contract may involve the
design, development, or operation of a system of records on
individuals that is to be operated under the contract to
accomplish a Government function; and
(4) to include this clause, including this paragraph, in
all third party contracts under which work for this Agreement
is performed or which is awarded pursuant to this Agreement or which
may involve the design, development, or operation of such
a system of records on behalf of the Government.
(b)For purposes of the Privacy Act, when the Agreement involves
the operation of a system of records on individuals to
ac=Vlish a Govenm-ezt function, the Recipient, third party
contractor and any of their enployees is considered to be an
employee of the Government with respect to the Government
function and the requirements of the Act, including the
38
civil and criminal penalties -for violation of the Act, are
applicable except thatthecriminal penalties shall not apply
with regard to contracts effective prior to Septenber 27, 1975.
In addition, failure to comply with the provisions of the Act
or of this clause will make this Agreement subject to termi-
nation.
i.
(c) The terms used in this clause have the following meanings:
(1) "Operation of a system of records" means performance
of any of the activities associated with maintaining the system
of records on behalf of the Government including the collection,
use and dissemination of records.
(2) "Record" means any item, collection, or grouping of
information about an irkiividual that is maintained by the
Recipient on behalf of the Government, including, but not
limited to, his education, financial transactions, medical
history, and criminal or employment history and that contains
his name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as
a finger or voice print, or a photograph.
(3) "System of records" on individuals means a group of
any records under the control of the Recipient on behalf of
the Government from which information is retrieved by the name
of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.
Section 120. Miscellaneous.
(a) Bonus or Cc mission. The Recipient warrants that it has not
paid, and also agrees not to pay, any bonus or canmi.ssion for
the purpose of obtaining an approval of its application for
the financial assistance hereunder.
(b) State or Territorial law. Anything in the Agreement to the
contrary notwithstanding, nothing in the Agreement shall
require the Recipient to observe or enforce canpliance with
any provision thereof, perform any other act or do any other
thing in contravention of any applicable State or territorial
law; provided, That if any of the provisions of the Agreement
violate any applicable State or territorial law, or if compliance
with the provisions of the Agreement would require the Recipient
to violate any applicable State or territorial law, the
Recipient will at once notify DOT in writing in order that
appropriate changes and modifications may be made by DOT and the
Recipient to the end that the Recipient nay proceed as soon
as possible with the Project.
39
as u
(c) records. The recipient, and any mass transportation operator
for�whic it applies will, for each local fiscal year ending
on or after July 1, 1978, oonform to the reporting system and
the uniform system of accounts and records to the extent
required by section 15 of the Urban Mass Transporaticn Act
of 1964, as amended, 49 U.S.C. § 1611, effective for each
local fiscal year ending on or after July 1, 1978, and UMM
regulations.
(d) Severability. If any provision of this Agreement is held invalid,
the remainder of this Agreement shall not be affected thereby
if such remainder would then continue to oonform to the terms
and requirements of applicable law.
40